Is there anything more obvious — as the world’s oil supplies rapidly diminish — than the fact that our prime objective is to remove Gaddafi and install a regime that is a far more reliable servant to Western oil interests, and that protecting civilians was the justifying pretext for this war, not the purpose?

Greenwald goes over the same narrative I put forward back in March.  Western oil companies moved into Libya after sanctions were lifted in 2004, but, according to a Wikileaks cable, Libya started to negotiate firmly on exploration contracts, leading some companies (Chevron and Occidental, for example) to decide not to renew their contracts.  But can we so easily conclude, as Glenn Greenwald does, that this explains the U.S. desire to intervene in Libya?  Did the U.S. intervene to install a regime that would hopefully strike better deals with Western oil companies?

There’s no smoking gun.  And, in fact, there’s evidence to suggest the opposite.  As I noted in March, as late as January 2011, the U.S.-Libyan Business Association (a group formed in 2005 that includes BP, Chevron, ConocoPhillips, Dow Chemical, ExxonMobil, Hess, Marathon Oil, Occidental Petroleum, all of whom have had oil interests in Libya) seemed optimistic about the profits they could achieve under Qaddafi.  Though it’s hard to know what they thought when unrest erupted in Libya, for the U.S.-Libya Business Association’s website went dark in February.

For clues, we can also turn to USA*Engage, a business coalition that includes Western energy companies.  But here we find evidence that weighs against Greenwald’s conclusion.  In February, when the Obama administration was trying to decide whether to impose unilateral sanctions on Libya, USA*Engage expressed opposition, stating that multilateral sanctions would be more effective.  But, as Mother Jones noted at the time:

But critics say USA*Engage has a history of opposing unilateral sanctions in order to make it easier for US companies to operate in rogue regimes. Given the lack of international consensus, simply waiting for a strong multilateral response is often unrealistic, they charge. And even when the international community does take action—as the UN Security Council moved to do this week, with American support—it tends to be weaker than the punishment countries like the US dole out.

USA*Engage did publicly express support for UN Security Council resolution 1973, which authorized military intervention, but only after the resolution was passed, and nothing could be done about it.  But USA*Engage’s opposition to strong sanctions measures suggests that the energy industry was not at the forefront of pro-intervention lobbying efforts, as Greenwald contends.

Until someone uncovers more definitive evidence about about the Western energy industry’s stance on the intervention, we’re left to wonder about the “Libya’s About Oil” angle.

This isn’t something new for India though.  Thousands of people in multiple cities in India protested government corruption in January.  And at least 100,000 protested corruption, unemployment, and high food prices in New Delhi in February.

A couple articles from the past week may helpfully fill out the story.  One, published earlier this week by The New York Times, examines the Indian city of Gurgaon.  The city has seen enormous economic growth fueled by an influx of outsourcing that began when General Electric entered the city in 1997.  But, as the article notes, public services have not kept up with economic growth.  Electricity, transportation, and postal services, for example, are so poor that many people depend on private alternatives.  Jim Yardley, the article’s author, draws a broad conclusion:

With its shiny buildings and galloping economy, Gurgaon is often portrayed as a symbol of a rising “new” India, yet it also represents a riddle at the heart of India’s rapid growth: how can a new city become an international economic engine without basic public services? How can a huge country flirt with double-digit growth despite widespread corruption, inefficiency and governmental dysfunction?

A second article, published last week in The Atlantic, is called “Why the Arab Spring Hasn’t Spread to India – but Should.”  The article’s author, Ranjani Iyer Mohanty, ponders why so many poverty-stricken people in India seem to accept their fate and expounds on the state of poverty, wealth disparity, and corruption in India.

We should watch how (and if) the protest movement continues to develop in India and ponder the differences (and similarities) between protests in India and those in more dictatorial countries.  One difference is the party politics element in India.  After the crackdown last weekend, the opposition party, Bharatiya Janata Party (BJP), staged further protests to condemn the use of police action, or “naked fascism,” as a BJP leader called it.  BJP has announced it will hold a four-day anti-corruption protest starting on June 23.

…[T]he situation in Afghanistan can still go wrong if the coalition leaves too soon.  I believe the views that should carry the most weight are the current people running the war.  They’ve reversed the situation in Iraq when all was considered lost and have stopped the momentum of the Taliban when many thought that situation was also lost.

Gail’s views contrast sharply with those of Ali Riazi of the new FPA Game Theory and Foreign Policy blog.  He writes:

The US war effort in Afghanistan is lacking true civilian leadership, and the existing leadership (military) is avoiding accountability through obfuscation, self-aggrandizement,  and attempts to overly intellectualize the conflict.

Also:

Likewise, the complexity of the conflict is continually and uncouthly underplayed in an attempt to provide for hope in a hopeless war that ignores severe policy shortcomings. Is self-aggrandizement part of the problem military leaders are displaying in Afghanistan?

So while Gail notes the progress made and suggests that civilians should defer to the military’s judgment, Ali calls the war “hopeless” and criticizes the civilian leadership for deferring too much to the military.

The debate is particularly important now, as President Obama is currently deciding on the nature of next month’s troop withdrawal.  Faheem Haider of FPA Afghanistan posted about this debate earlier in the week.  As Faheem notes, the two mainstream sides of the debate are epitomized by Robert Gates (who has cautions against removing too many troops) and Nancy Pelosi (who wants a more substantial drawdown).

So what do we make of this?

As I wrote last year for the Euro-Atlantic Center, the NATO strategy is to leave Afghanistan in a state in which the Kabul government can effectively fight and ultimately win its civil war.  The two factors that will most effectively indicate how this might pan out are the state of the Afghan security forces and the state of the Afghan economy.  I was pessimistic last year, I remain so today.  Though, as Gail harris notes, NATO is meeting its training goals, Afghanistan’s economic situation does not invite optimism.  One can turn to the recent Senate Foreign Relations report for specifics.  (It’s downloadable here and is worth a read.)  The report warns that U.S. aid to Afghanistan is not being spent in a way that facilitates Afghan stability.  I’ll quote the report at length:

According to the World Bank, an estimated 97 percent of Afghanistan’s GDP is derived from spending related to the international military and donor community presence.  A precipitous withdrawal of international support, in the absence of reliable domestic revenue and a functioning marketbased economy, could trigger a major economic recession.  USAID and the State Department recognize these challenges and their current planning is ‘‘anticipating both the impact of the U.S. troop withdrawal on the Afghan economy, and on U.S. civilian resources.’’

At present, donors are picking up most of the costs of running the Afghan Government. Scott Guggenheim, formerly with the World Bank, has noted that domestic revenues only cover one-fifth of public spending and two-thirds of public spending is off-budget, which means that donors pay for most development services.

Achieving fiscal sustainability will require the Afghan Government to (1) substitute donor grants for the operating and development budget; (2) assume external budget obligations on the operating budget; (3) pay for a share of technical assistance for core civil service functions; (4) fund the Kabul process; and (5) invest in operations and maintenance for acquired assets. Transition planning should find the right balance between avoiding a sudden dropoff in aid, which could trigger a major economic recession, and a long-term phaseout from current donor levels.

These are daunting tasks. Analysts estimate that it could cost between $6 and $8 billion a year alone to sustain the Afghan National Security Forces, depending on the final size of the force.  Without significant domestic revenue generation, the Afghan state will not be self-sufficient for decades and donors, particularly the United States, will have to bear the costs. With the right planning, Afghanistan may be able to generate substantial revenues from its sizeable mineral deposits in the future, but we do not see any signs of near-term revenue generation from its mineral wealth.

These signs could point to the United States reliving the experience of the Soviets.  After the Soviets withdrew from Afghanistan, the Afghan security forces were able to successfully battle insurgents.  But the Kabul government depended on the financial and political support of the Soviet Union, and when that ceased in 1992, the Kabul government fell.  See this report from the U.S. Government’s Federal Research Division, which states:

With the failure of the communist hardliners to take over the Soviet government in August 1991, Najibullah’s [then the president of Afghanistan]  supporters in the Soviet Army lost their power to dictate Afghan policy.  The effect was immediate.  On September 13, the Soviet government, now dominated by Boris Yeltsin, agreed with the United States on a mutual cutoff of military aid to both sides in the Afghan civil war.  It was to begin on January 1, 1992… Having been cut adrift both materially and politically, Najibullah’s faction torn government began to fall apart.

If Afghanistan does not achieve fiscal sustainability, the same thing could happen again.  And the other level, of course, involves the question of why the propagation of the current Kabul government serves U.S. security interests.  The assumption is that the Taliban, if victorious in the civil war, will allow their territory to be used as an al Qaeda safe haven, as they did through 2001.  But, as Stephen Walt has argued, this assumption may be incorrect.  These are the factors one should consider when determining how many troops, and which troops, to bring home next month to best serve U.S. national security interests.

Smith argues that during the First Barbary War, the United States “captured the Ottoman city of Derma,” which was a “blatant violation of the sovereignty of the Ottoman Empire,” so the United States now should follow in the Founding Fathers’ footsteps and not worry so much about Pakistan’s sovereignty.  This concern with other countries’ sovereignty, Smith argues, “is consistent with the belief that the U.S. should remain politically and militarily uninvolved in other countries’ internal affairs” and “this purist doctrine of non-interventionism is contrary to the founding principles of America’s early foreign policy.”

But Smith shows a lack of appreciation for the development of the concept of sovereignty.  There is actually much debate about when exactly European countries acknowledged the Ottoman Empire as a sovereign entity.  Many take the view that the Europeans first acknowledged the Ottoman Empire’s sovereignty in the 1856 Treaty of Paris that ended the Crimean War.  This would mean that during the Barbary Wars, the Europeans (and the United States) did not view the Ottoman Empire as sovereign.  Thus, obviously, the U.S. capture of Derma in the First Barbary War (in 1805) could not possibly have been a “blatant violation of the sovereignty of the Ottoman Empire,” as Smith contends.

For those interested in delving deeper into the Turkey sovereignty issue, here’s an old (and by old I mean from 1943) article by Hugh McKinnon Wood.  As Wood notes, the Europeans did not originally intend the idea of sovereignty to fully apply “to States outside the pale of Christian civilization.”  But, as Wood continues:

The truth appears to be that towards the end of the first half of the 19th century the reasons for holding that Turkey was outside the operation, or not fully within the operation, of the international law observed by the Christian Powers had become for all practical purposes obsolete, owing to those Powers becoming the predominant partners in all relations between them and the Sublime Porte [the Ottoman Empire], and owing to the growing complexity and extent of their relations with it.

And as Wood explains, people debate whether the 1856 Treaty of Paris made this recognition official, or whether recognition happened earlier.  Wood cites one writer, A. H. Smith, who argues that “for centuries… the general body of international law was considered to apply” to Turkey.  But still, given the ambiguity and the extent of the legal debates, Marion Smith’s statement about the “blatant violation” of Turkey’s sovereignty is an overreach.

Additionally, Marion Smith errs by glorifying the results of the Barbary Wars.  In Smith’s narrative, military force was the necessary and appropriate method to subdue the threat of Barbary piracy.  But look more closely at the Barbary Wars, and they don’t seem so great.  See this Bradley Smith piece from 2005, for example.  As Bradley Smith notes, here’s how the First Barbary War ended:

The military victory at Tripoli aroused American passions, united the Nation, and bolstered its bargaining power. But rather than prosecute the war further, Jefferson chose to cut military spending and eliminate the Federal debt. In 1805 he struck a deal with Tripoli, exchanging prisoners and paying one last installment (equivalent to nearly a million of today’s dollars) while allowing the bashaw to remain in power.

So the first war ended when the U.S. president paid the enemy about one million dollars, ten years later a second war broke out, and even when that concluded, as Bradley Smith notes, one more measure was needed to definitively eliminate the threat:

Terrorism on the high seas might have continued longer had European powers not conquered North Africa and installed regimes supportive of European interests. The English and Dutch ceased tribute payments and attacked Algeria. France annexed Algeria in 1830 and turned Tunis and Morocco into French protectorates. Italy forcibly colonized Tripoli. (15) Pirate dens were eradicated and local support prevented.

Perhaps this is a strategy Marion Smith would recommend?  Unfortunately, the decolonization trends of the twentieth century prove this option unviable.

If Palestinians peacefully march to Jerusalem by the thousands every Friday with a clear peace message, it would become a global news event. Every network in the world would be there. Trust me, it would stimulate a real peace debate within Israel…

Yet Friedman’s proposal is eerily reminiscent of a similar proposal offered last September by Robert Wright, also writing for The New York Times.  (I wrote about Wright’s op-ed here.)  Wright argued that the Palestinians should start a peaceful movement advocating for a one-state solution in which Israel grants Palestinians the vote.  This movement, claimed Wright, “would gain immediate international support,” and Israel, fearing the movement’s popularity, would begin to take genuine steps toward a two-state solution.

But Wright, and now Friedman, neglect the substantial nonviolent movements already happening in the Palestinian Territories.  I offered some details in my post about Wright’s op-ed.  And Friedman’s piece is particularly peculiar, as it comes just a few weeks after massive nonviolent demonstrations involving tens of thousands of Palestinian protesters in the West Bank and Gaza, which resulted in the Fatah-Hamas reconciliation deal.  Friedman, though, doesn’t mention this fact and states that Israel and the Palestinian Territories “have been untouched by the Arab Spring.”

So aside from the fact that the massive nonviolent Palestinian protest movement went unmentioned by Friedman while he simultaneously asserted that such a movement would “become a global news event” that would change the political realities in Israel, there are other reasons to view Friedman’s proposal with skepticism.  One thing to look at is a report issued recently by the Association for Civil Rights in Israel.  The report examines and critiques Israeli police treatment of Palestinians in East Jerusalem, and observes, among other things, that “the excessive use of riot-control measures in the heart of crowded residential areas has become all too commonplace.”  Additionally, according to Haaretz, witnesses claim that Israeli police have begun using stun guns against demonstrators in East Jerusalem.  The alleged stun gun incident occurred at the settlement of Ma’ale Zeitim, an Israeli settlement in East Jerusalem, and the site of weekly protests.  And last month, Israeli soldiers fired on Gazan protesters marching toward the separation barrier.  As an IDF spokesman stated, “Soldiers fired in a controlled manner towards the legs of the leading rioters, in order to disperse them and prevent them from entering Israeli territory. A number of rioters were injured as a result.”

So there are already significant nonviolent demonstration efforts, Israel is fairly successful at cracking down on them, and they have not played a large role in changing the political dialogue.  That’s not to advocate a violent solution in place of Friedman’s proposed nonviolent route.  I merely think Friedman (and Wright before him) could have done a more comprehensive job of assessing the dilemmas the Palestinians face in their protest efforts, and better address how the Palestinians can surmount these obstacles.

GRACE: One criticism of the ICTR you raised at Brown was the cost.  ICTR cases have proceeded slowly and the tribunal is incredibly expensive.  Its annual UN budget exceeds $100 million.  And this figure is in the same range as other international judicial fora, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC).  Has the ICTR been worth the cost?

GALLIMORE: The answer will depend on who you ask. Families of genocide victims would probably say “No.”  The disfigured, poor, starving, traumatized, and HIV/AID positive genocide survivors would perhaps also say “No”.

GRACE:  Is international justice, in general, worth the cost?

GALLIMORE: International justice as we know it, in general, is a necessary evil. Entities like the ICTR/ICTY and ICC are an admission to failure. They are after-the-fact mechanisms for dealing with the international community’s failure to deter, prevent, and to protect despite its many resolutions and often repeated mantra of “never again.”  The money for these institutions would be better spent on prevention of conflict.

GRACE: Is there anything the ICTR could have done to reduce its operating costs?  Or is the expensiveness of international justice inescapable?

GALLIMORE: Death is the only thing that is inescapable. International justice need not be as expensive as it has become.

The ICTR could have reduced its operating costs by employing national legal experts from the East Africa region, rather than relying on United Nations staff who earn international salaries and benefits to prosecute the cases. The Tribunal could have saved money by requiring the defendants (Accused) to pay for their own defense attorneys and investigation teams. Each and every indicted person appearing before the Tribunal claimed to be indigent, thus obligating the ICTR (or more accurately, the international community) to pay for the prosecution and defense of these individuals. Some of the accused were wealthy Rwandans who allegedly absconded with the nation’s treasury when they fled the country just after the genocide. I am not convinced that not a single one of them has the financial resources to mount an adequate defense.  In any event, those qualified attorneys around the world who claim to love justice and guaranteeing the rights of the accused could have, and should have, made themselves available for pro bono representation of those who were indicted by the ICTR.

It has been acknowledged that the early prosecution strategy of conducting joint (multiple-accused) trials slowed down the process and added to the overall cost of operating the Tribunal. That practice has been discontinued but the joint trials, some of which are still in progress more than a decade later (see the Butare trial ICTR -98-42), have consumed more resources than they would have consumed had they been tried as single-accused cases.

The cost of the ICTR would have been less if the Tribunal had taken the decision earlier than 2006 to issue judicial notice that there was genocide against the Tutsi ethnic group in Rwanda in 1994. Delay of that decision on judicial notice obligated the Prosecutor to present evidence in every case to prove that the genocide did take place. Much prosecutorial time and defense attorneys’ billable hours could have been avoided with an earlier judicial determination that the genocide did happen.

GRACE: You also critiqued the ICTR for its reluctance to transfer cases to Rwanda.  The ICTR’s concern is about preserving the human rights of the defendants.  Rwanda had the death penalty, as you noted, which risked violating the defendants’ right to life.  But, as you also noted, Rwanda abolished the death penalty in 2007, and the tribunal remains hesitant to transfer cases to Rwandan jurisdiction.  How does the tribunal now justify its hesitation?  Why, in your view, are these reasons invalid?

GALLIMORE: I would have to read the most recent rejections of the Prosecutor’s motion to transfer cases to Rwanda to see what justifications the Trial Chamber judges are now offering for not transferring cases to Rwanda. I did read the decisions in the first round of rejections and, in addition to the existence of the death penalty in Rwanda, the reasons that the judges provided for not granting the transfers included:

1. The penalty structure in Rwanda. The judges found that conditions of detention in Rwanda for any person transferred for trial and convicted would not be “under international standards.” They concluded that any genocide convict would be subjected to life imprisonment in isolation or solitary confinement.

2. Independence of the Rwandan judiciary.  The ICTR judges were not “satisfied” that the Accused would receive a fair trial in Rwanda. They concluded that trial by a single judge may compromise fair trial rights of the accused because of the Rwandan Government’s “tendency to pressure the judiciary” and because “past practice has shown interference with judicial decisions.” (See Munyakazi case, ICTR-97-36A.)

3. Guaranteeing availability and protection of defense witnesses. The judges reached the conclusion that defense witnesses might fear being charged with promoting genocide ideology if they testify for the accused in Rwandan courts. The ICTR judges also found that there would be a lack of “equality of arms” if defense witnesses choose to testify by video technology rather than in person as prosecution witnesses.

GRACE: Why, in your view, are these reasons invalid?

GALLIMORE: In my view, the judges’ reasons are invalid because they are based on speculations about what might happen and how people might behave. The judges have no way of knowing that the dreadful things they identified will indeed happen, or even might happen, to the accused if they are transferred to Rwanda for trial.

Their concern about international penalty for crime and international standards of detention reifies the double standard of justice that many have charged the Tribunal with perpetuating. Rwanda has a prison that meets international standards of incarceration and convicted prisoners from the Special Court for Sierra Leone are in that prison now. Many of the ICTR indictees who would be transferred for trial built and maintained the Rwandan prisons over the decades before the genocide and no one in the international community seemed to care much that these prisons were not up to international standards until there was the possibility that genocide convicts would have to live in these same facilities.

Rwandan courts have much more experience prosecuting genocide cases than the ICTR. Rwandan judges have adjudicated thousands of genocide cases some of which have resulted in acquittals. To argue as the Trial Chamber judges do that the structure of the Rwandan judicial system is inherently biased against the accused flies in the face of reason and fact. The Rwandan courts and legal system have managed to provide legal defense, protection of witnesses, and access to evidence for the parties in thousands of cases. In fact, the ICTR relies on the Rwandan legal system to protect witnesses and to facilitate the collection of evidence for the trials at the Tribunal. It is rather odd that the ICTR judges are satisfied with the performance of the Rwandan system in meeting the Tribunal’s legal needs but find the same system unsatisfactory for meeting the nation’s own needs.

GRACE: As you also stated at Brown, the tribunal has been reluctant to press France to proceed with prosecutions.  The ICTR referred the cases of Wenceslas Munyeshyaka and Laurent Bucyibaruta to French courts in 2007, and they have still not been prosecuted.  What could the ICTR do, and what could it have done, to press France more forcefully?  What unused tools are at the ICTR’s disposal?

GALLIMORE: The ICTR judges required the Prosecutor to submit monitoring reports every three months on these two cases as a condition of the transfer to France. The monitoring reports are to ensure that France “diligently” prosecutes the two transferees. I do not know if those monitoring reports are being submitted to the Trial Chamber but it would be worthwhile for justice-loving advocates and watchdogs of fair trial rights to request copies of the reports to verify that prosecution is taking place. If diligent prosecution is not taking place, the Trial Chamber can revoke the transfers and require France to hand over the two indictees to the ICTR for trial.

There is precedent for revocation. In May 2008, the Trial Chamber revoked the transfer of Michel Bagaragaza to The Netherlands and ordered his return to ICTR custody for trial.

The Prosecutor or the Tribunal President can report France to the Security Council for not cooperating with the Tribunal in the prosecution of the two accused in its custody or for not cooperating in the apprehension and prosecution of other indicted fugitives who may be hiding in France.

The ICTR could also use the pressure of public opinion through public disclosure about the status of the case to get France to diligently prosecute the two accused.

GRACE: What explains the ICTR’s reluctance to press France?  At Brown you raised the possibility that the ICTR has a Western bias.  But could the concern be monetary?  Perhaps pressing France would endanger the tribunal’s finances?

GALLIMORE: I suspect that the Tribunal’s reluctance to “press France” to prosecute Munyeshyaka and Bucyibaruta has more to do with politics and real international law that with a threat to its finances. The realpolitik of the Security Council (P5) permanent members probably drives what gets done or does not get done more than money to keep the ICTR in business. It has been publicly alleged on numerous occasions and in multiple venues that France armed, trained and otherwise assisted the former Rwandan regime and death squads that carried out the genocide in 1994. It has also been alleged that China’s actions in the Security Council have blocked greater intervention to stop the genocide in Darfur because China has economic interests (oil contracts) that would be threatened if peace and stability were to return to Darfur. I am in no position to pronounce on the veracity of these allegations but I believe they might offer a more plausible explanation for not pressing France to prosecute the two genocide suspects who have been on its territory for almost two decades and in its legal custody for prosecution on an ICTR indictment since 2007.

The circumstances and legal context surrounding the transfer of the cases to France in 2007 may be a better explanation about the reluctance of the ICTR “to press France to proceed with prosecutions” of the two genocide suspects in its custody. The legal exchange between French legal authorities and the ICTR leading up to the granting of transfers by the Trial Chambers were quite interesting—more interesting than the transfers themselves in my opinion.  France had raised the issue of “primacy” of the Tribunal by questioning the validity of the ICTR arrest warrant and requiring evidence from the ICTR Prosecutor before executing the warrant and taking custody of the suspects. French authorities were arguing that any arrest of Munyeshyaka and Bucyibaruta would have to happen under a French warrant and in accordance with French law and not based on an ICTR warrant. The UN Resolution establishing the Tribunal gives the ICTR legal priority or primacy over all national courts in matters concerning prosecution of individuals indicted by the ICTR. All national courts are required to defer to the jurisdiction of the ICTR and it was this international legal principle that France was questioning.

There was an international legal train wreck in progress and some real international law was about to be made until the Trial Chambers derailed the confrontation by granting the transfers. The transfers made the primacy issue moot and it took the French courts another few months after the ICTR referrals to decide that they would accept the transfers that the Tribunal had granted.

It is worth noting that the same panel of judges that granted the transfers to France rejected the Prosecutor’s first requests to transfer ICTR cases to Rwanda for trial. A reading of the disparate treatment of the transfer cases involving Rwanda and France indicate a double standard and a distinct Western bias of the Tribunal judges. The ICTR judges subjected the Rwandan courts and legal system to different and additional scrutiny than what they applied to the French courts and legal system as criteria for judicial satisfaction to justify transfer of the cases.

The same bias was present in the unsuccessful transfer of Bagaragaza to The Netherlands.

GRACE: Let’s look at the positives of the ICTR.  What contributions has the ICTR made to bringing the genocide perpetrators to justice and, more broadly, to developing the body of international law?

GALLIMORE: To date, the ICTR has indicted 90 persons and arrested 80 of them including 1 witness and a defense investigator. The Tribunal concluded the trial of 59 of the accused with 51 convictions and 8 acquittals. There are 9 cases on appeal. Another 16 cases are in progress and 1 accused is still waiting to go to trial. Two of the accused died before completion of their trials. Ten (10) fugitives are still at large. The U.S. State Department is offering $5 million under its Rewards for Justice War Crimes Program for information leading to the arrest of these fugitives. All trials should be completed by mid 2011 and all appeals in 2012 or early 2013 when the Tribunal is expected to close.

The ICTR has been successful in its mandate to hold accountable the highest level of perpetrators who organized and carried out the genocide in Rwanda. The trials completed by the Tribunal have challenged the historical impunity that existed in Rwanda for government and military officials who conducted previous massacres of Tutsi civilians under a societal ideology of hatred and extermination as a final solution to a scapegoat minority.

Taking bad guys and one bad gal out of circulation
One significant accomplishment of the Tribunal was taking the would-be genocide perpetrators out of circulation.  Most of the genocide government/cabinet/military leaders are in detention or have been tried and convicted.

Besides its success in holding accountable the so-called “big fish” among the genocide perpetrators, the Tribunal has made substantial contributions to international criminal jurisprudence and to the developing human rights legal regime.

Interpreting the Geneva Conventions/Defining Genocide
The ICTR was the first international tribunal to interpret the definition of genocide set forth in the 1948 Geneva Conventions. The ICTR jurisprudence is a particularly important source for both the definition and application of the legal components for the criminal offence of genocide.

Rape as an Act of Genocide
The first ICTR judgment was groundbreaking for its finding that rape can be an act of genocide.

No Immunity from Prosecution for Heads of State
The ICTR was the first international tribunal since the International Military Tribunal in Nuremberg in 1946 to hand down a judgment against a head of government. The Former Prime Minister of the Interim Government of Rwanda, Jean Kambanda, was convicted of genocide and sentenced to life in prison, thus reaffirming the principle that no individual enjoys impunity for serious mass crimes because of official position. By judging the international fugitives who fled beyond the reach of Rwanda, the work of the Tribunal represents a significant attack against the historical government impunity for killing Tutsi in Rwanda.

Legal Doctrine of Command/Superior Responsibility
Under this doctrine, military commanders are held personally responsible for human rights violations and other international crimes committed by their subordinates if the superiors knew, or should have known about commission of those violations and did not prevent them or punish the perpetrators after commission of the crimes. The Tribunal’s Statute in Article 6(3) endorses the application of the doctrine of command responsibility to the civilian leadership.

Freedom of Expression vs. Incitement to Criminal Action
In the “Media Case”, the Tribunal established the legal principle that those who use the media for inciting the public to commit genocide can be punished for their communication which amounts to hate speech and persecution as a crime against humanity. This is the first contemporary judgment to examine the role of the media in the context of inciting the public to commit crimes. This important case addresses the boundary between the rights guaranteed under international law guaranteeing freedom of expression and incitement to genocide. See Nahimana, Case No. ICTR 99-52-T.

Judicial Notice of Genocide of the Tutsi
On June 16, 2006, the ICTR Appeals Chamber issued a decision that the Trial Chambers must take judicial notice that between April 6, 1994 and July 17, 1994 there was genocide in Rwanda against the Tutsi ethnic group. Judicial notice of the genocide means that the occurrence of the 1994 genocide in Rwanda is to be taken as an established fact that is beyond dispute and does not require any further proof. By establishing this legal fact (judicial notice) the ICTR put on record the genocide against the Tutsi and provides moral grounds for the international condemnation and public rebuke of the perpetrator of genocide crimes.

Judicial/Historical Record of the Genocide
The work of the Tribunal establishes a historical record against genocide negationism and revisionism. It also created an archive and depository of records for writing a new history and for re-imaging of Rwanda.

Cathartic for Trauma Healing
The trial process at the ICTR gives voice and audience to some of the genocide survivors to tell their stories and to validate their experiences of suffering. It has been argued that the ability to give testimony (witnessing) empowers survivors who appear as witnesses and assists in their psychological recovery and emotional healing.

Legal Precedent for National Prosecutions
The numerous decisions of the Tribunal on procedural and administrative issues have created a framework for prosecution of genocide and related crimes by courts in national jurisdictions.

GRACE: Some criticize the ICTR as a mechanism of “victor’s justice.”  These critiques come, predictably, from defendants and their representatives, but they come from more reputable sources as well.  Human Rights Watch (HRW), for example, has called on the ICTR to take on cases involving crimes committed by the Rwandan Patriotic Front (RPF).  Human Rights Watch notes: “According to the United Nations High Commission for Refugees, between April and August 1994, the RPF killed between 25,000 and 45,000 civilians. At least four United Nations agencies, Human Rights Watch, and other nongovernmental organizations have also documented RPF crimes.”  Why has the ICTR not pursued these cases?  Should it have?

GALLIMORE: The ICTR did pursue these cases and referred them to Rwanda for trial. The trials were promptly completed and the guilty convicted and sentenced for their crimes. These allegations of RPF crimes were the subject of special investigations by the ICTR Prosecutor who provided updates to the Security Council and a report on their disposition.

GRACE: But HRW has scathingly critiqued these trials, calling one ” a political whitewash and a miscarriage of justice, betraying the rights of victims’ families to obtain justice for their loved ones.”  HRW paints a picture of a biased court giving out lenient sentences to the RPF.  Why you think HRW is wrong about whether justice was done?

GALLIMORE: HRW does not hold any special status of infallibility that requires any one to prove it wrong about its many inaccurate and politically biased statements and conclusions.  HRW pronouncements and reports do not create a presumption of truth or accuracy giving readers a burden to prove that the organization is wrong. Readers can assess the value of HRW statements and reports based on the transparent data and credible evidence on which it bases its assertions and conclusions.

I was not aware that HRW has the mission or expertise to assess whether justice was or was not done in national courts. It would be interesting to see the HRW assessments of justice in national courts other than Rwanda. The surveillance of the two ICTR cases that were transferred to France for prosecution might be a useful start for the expanded mission of HRW to ensure justice in all legal jurisdictions.

The document to which you referred is a letter from the Executive Director of HRW containing a lot of assertions, opinions, and conclusions aimed at pressuring the independent Prosecutor of the ICTR to take action that HRW, or at least the Executive Director, believes should be taken. It is extremely presumptuous of HRW to be instructing the ICTR Prosecutor about the merits of indicting parties based on “evidence” that HRW “believes” that the Prosecutor has. HRW is hardly in a position to assess the evidence that the Prosecutor has never mind second-guessing the Prosecutor’s decisions based on evidence that HRW has not seen. In addition, the Prosecutor is prohibited from seeking or accepting directions from any outside source in discharging the responsibilities with which the Security Council has entrusted him. The high standards of international justice are perhaps better served by disinterested and independent prosecutors than by passionate human rights advocacy organizations.

While I was at the ICTR, I remember getting inquiries from Human Rights Watch researchers and other human rights organizations about the Prosecutor’s request to transfer cases to Rwanda. They were looking for information with which to disparage the Rwandan legal system and to discredit the Rwandan government in a campaign to influence the ICTR judges not to transfer cases to Rwanda for trial. I say this because the researchers’ questions demonstrated that they were more interested in their own agenda and in information to fit that agenda than they were in hearing the facts about the cases and the legal rules and procedures that the Tribunal would follow in assessing the Prosecutor’s request to transfer the cases.

If memory serves me right, HRW filed 4 or 5 amicus briefs arguing against the transfer of cases to Rwanda. These amicus briefs are replete with exactly the type of information that the researchers were trying to obtain or to confirm, in their questions to me. This organization is definitely not in a disinterested or dispassionate position to make objective commentary about the administration of justice in Rwanda.

It was not too long ago that organizations like HRW were criticizing Rwanda for handing out too harsh a punishment to RPF soldiers and civilians alike who were convicted by the Rwandan courts for criminal activity during the same period of armed conflict and genocide as the “whitewashed” cases for which it now criticizes the courts for being biased and too lenient.

GRACE: In Rwanda, it is a crime to deny the Rwandan Genocide.  Can you lay out the justification of this law for my readers?

GALLIMORE: There are actually three different laws in Rwanda with provisions against genocide denial. One law criminalizes negating, minimizing, justifying or approving of genocide. A second measure outlaws genocide ideology, and the third prohibits discrimination and sectarianism. It would take a separate interview (analysis) to answer this question adequately and I am willing to do so at a later time. I am also willing to get the legislative notes and discussions of the Rwandan Parliament that should “lay out the justification” for their prohibition on genocide denial in the various laws much better than I can based on my own reading and analysis of the legal documents.

GRACE: Should we worry about the current political situation in Rwanda?

GALLIMORE: No

GRACE: According to The New York Times, Rwanda under President Kagame is “orderly but repressive” and “increasingly intolerant of political dissent.”  Current events in the Arab world demonstrate the unsustainability of political repression.  Though Rwanda is stable now, is Kagame sowing the seeds of eventual unrest?

GALLIMORE: No

GRACE: HRW has condemned what it calls “the steady crushing of political dissent” in Rwanda.  Why do you think HRW is wrong?

GALLIMORE: Once again, HRW enjoys no privileged status with respect to the truth or “rightness” of its opinions and conclusions about political conditions and freedom of expression in Rwanda—or anywhere else for that matter. HRW makes a pretty sensational and sweeping charge about political dissent in Rwanda but offers no verifiable data or credible independent sources for that conclusion.  It does follow the fallacious strategy of recirculating citations of undocumented charges that somehow are supposed to be taken as truth just because they appeared in HRW documents or in the New York Times.

The HRW document to which you referred is a commentary, an opinion piece by a HRW officer. The piece does contain the charge that the Rwandan government is “steadily crushing” political dissent. But the HRW official offers no evidence on which she based that conclusion. Yes, she does immediately refer to a New York Times article after making the accusation but she provides no supporting data to convince the reader of the accuracy of her conclusion. The New York Times article (April 30, 2010) on which she appears to be basing her salacious charge of political repression in Rwanda demonstrates the circular citation fallacy. The HRW official cites HRW Director Roth (or HRW cites itself) as the source for evidence of repression in Rwanda. Roth provides the quote that President Kagame is “stymieing a political opposition” in Rwanda. He offers that conclusion without any independent data or without identifying any repressed sources who made that claim.

The New York Times article referenced by the HRW official is full of unsupported claims by unnamed and unspecified “political analysts” “human rights groups” “critics” and political “dissidents” who say Rwanda is “repressive.”  The article does quote two opposition politicians who claim to have no space to talk about the genocide. However, the charges of persecution and repression are assertions of the New York Times reporter. The piece should have been labeled “commentary or opinion” because it does not meet the usual journalistic news standards of the Times.

The New York Times’ reporting, no matter how “dogged” does not establish evidence that the Rwandan government killed journalists, dissidents or opposition politicians as HRW is attempting to suggest in its report that you present as truth needing my refutation.

GRACE: Finally, with the ICC, the age of special tribunals is over.  Yet the ICC is vulnerable to the same flaws as the ICTR: high costs, slow progress, contamination by political considerations.  How optimistic should we be about the future of international justice?

GALLIMORE: If you are interested in more of the same, you can be very optimistic. If you are interested in “blindfolded” justice, you have nothing to be optimistic about because all ICC “situations” under investigation to date are in Africa while there are other “situations” in other parts of the world that warrant investigation and prosecution but have somehow not made it to the ICC docket. The African Union made this observation 2 years ago and called for a resolution of its members to ignore the jurisdiction of the ICC and to boycott any arrest warrants it issues. The “situation” in Sudan/Darfur has not changed despite the ICC arrest warrant for the president of Sudan. Libya’s Kadaffi was recently identified for addition to the list of ICC indicted war criminals. Without the cooperation of police officials in these African countries, the perpetrators of mass violence and human rights abuses seem to have little to fear from the ICC and international justice. Some other method or tool is needed to get the job done.

First, Obama stated unequivocal support for democracy, asserting that U.S. policy is to “support a set of universal rights” that includes “the right to choose your own leaders—whether you live in Baghdad or Damascus; Sanaa or Tehran.”  But on the popular movement in Palestine that resulted in a Fatah-Hamas reconciliation agreement, he didn’t express strong support but rather stated that the agreement “raises profound and legitimate questions for Israel.”  This reconciliation movement, though, as some have argued, can be considered part of the Arab Spring.  In March, popular demonstrations of tens of thousands of Palestinians in the West Bank and Gaza called for reconciliation.  And the legitimacy and legality of Abbas’ presidency has been in doubt since his term ended in January 2009.  So the movement toward Palestinian elections could be considered a triumph of democracy, though one that undoubtedly complicates U.S. Middle East policy.

Second, some (Rick Santorum, for instance) have accused Obama of rewarding terrorism.  Hamas struck a reconciliation deal with Fatah, and then Obama came out in support of Palestinian statehood based on the pre-1967 borders, so doesn’t this reward Hamas’ targeting of civilians?  But (I’ve said it before and I’ll say it again), take a look at the 2008 RAND study on how terrorist groups end.  The study looks at 648 terrorist groups that existed between 1968 and 2006 and finds that, of the ones that ended, the most likely reason was that they were integrated into political processes.  In 2008, Hamas offered Israel a ten-year truce in return for an Israeli withdrawal to the pre-1967 borders.  And earlier this month, Hamas announced its support of a two-state solution.  There are many questions to grapple with.  The scope of the right of return, which Hamas strongly supports, and the nature of land swaps, which Hamas rejects, but the prospects for a settlement that involves Hamas are better than some suggest.

Third, this Ronald Reagan quote has been floating around:

In the pre-1967 borders, Israel was barely ten miles wide at its narrowest point. The bulk of Israel’s population lived within artillery range of hostile armies. I am not about to ask Israel to live that way again.

The quote showed up in a piece by Glenn Kessler about how Obama’s speech differed from those of his predecessors.  As Kessler notes, Obama’s expressed support for a two-state solution based on the pre-1967 borders with land swaps was not a novel policy change, but the context in which he expressed it – a prepared speech delivered by a U.S. president – had not been done before.

But many people (see here and here, for instance) are using the Reagan quote to argue that Reagan was a better friend to Israel than Obama.  On borders, though, Reagan was pretty close to Obama.  Here’s what else Reagan had to say about borders in the same speech:

We base our approach squarely on the principle that the Arab-Israeli conflict should be resolved through the negotiations involving an exchange of territory for peace. This exchange is enshrined in United Nations Security Council Resolution 242, which is, in turn, incorporated in all its parts in the Camp David agreements. U.N. Resolution 242 remains wholly valid as the foundation-stone of America’s Middle East peace effort.

It is the United States’ position that – in return for peace – the withdrawal provision of Resolution 242 applies to all fronts, including the West Bank and Gaza.

Though Reagan, unlike Obama, took a firm stand on Jerusalem:

Finally, we remain convinced that Jerusalem must remain undivided, but its final status should be decided through negotiations.

In terms of territory, this is the more significant distinction between the two speeches.  But it’s interesting to note that the Israeli reaction to the Reagan Plan was vehement opposition, on the same level, if not more so, than current Israeli reaction to Obama’s speech.  And for the exact same reasons.  Here is Netanyahu’s response to Obama (from Haaretz):

“Israel appreciates President’s Obama commitment to peace,” Netanyahu said, but stressed that he expects Obama to refrain from demanding that Israel withdraw to “indefensible” 1967 borders “which will leave a large population of Israelis in Judea and Samaria and outside Israel’s borders.”

Here is Menachem Begin’s letter to Reagan after Reagan’s September 1982 speech:

What some call the ‘West Bank,’ Mr. President, is Judea and Samaria, and this simple historic truth will never change. There are cynics who deride history. They may continue their derision as they wish, but I will stand by the truth. And the truth is that millennia ago there was a Jewish Kingdom of Judea and Samaria where our kings knelt to God, where our prophets brought forth the vision of eternal peace, where we developed a rather rich civilization which we took with us in our hearts and in our minds, on our long global trek for over 18 centuries; and, with it, we came back home. By aggressive war, by invasion, King Abdullah conquered parts of Judea and Samaria in 1948; and in a war of most legitimate self-defense in 1967, after being attacked by King Hussein, we liberated, with God’s help, that portion of our homeland.

Geography and history have ordained that Judea and Samaria be mountainous country and that two-thirds of our population dwell in the coastal plain dominated by those mountains. From them you can hit every city, every town, each township and village and, last but not least, our principal airport in the plain below.

Mr. President, you and I chose for the last two years to call our countries ‘friends and allies.’ Such being the case, a friend does not weaken a friend, an ally does not put his ally in jeopardy. This would be the inevitable consequence were the ‘positions’ [Begin refers here to the Reagan Plan which called on Israel to withdraw to the 1967 lines] transmitted to me on August 31, 1982, to become reality. I believe they won’t. ‘For Zion’s sake will I not hold my peace, and for Jerusalem’s sake I will not rest.’ (Isaiah 62).

The Reagan-Obama dichotomy is not as distinct as some are claiming.

Was it really that exciting though?  Koh reiterated the rationale he gave in a speech last year to justify targeted killing.  Then he argued that the bin Laden killing was justified because it was executed in accordance with those principles.  Or as Chris Rogers, a human rights lawyer with the Open Society Foundations, stated in the comments section, “So Koh’s response is essentially to cut and paste his ASIL speech? There are important legal questions that continue to be unanswered, which Koh’s response has done nothing to clarify.”

Koh’s international legal argument is that the United States is engaged in armed conflict with al Qaeda, bin Laden was the leader of the enemy force, he posed an imminent threat, and the operation was conducted in accordance with the principles of distinction and proportionality.  But he doesn’t delve into the specific complexities that have dogged the law blogs for the past couple weeks.  On the Pakistani sovereignty issue, he does say:

Of course, whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses.

But he doesn’t say specifically how the U.S. considered Pakistan’s sovereignty.  Is the argument that there was no violation of Pakistan’s sovereignty because there was a secret U.S.-Pakistani deal that allowed for such a raid?  Is the argument that there is no sovereignty issue because Pakistan consented to the raid after the fact, even though it didn’t know about it beforehand (as some have argued)?  Or is it that Pakistan was unwilling or unable to deal with the threat itself?  If so, how was this determined?  And what, in general, is the standard for how this should be determined?

He also didn’t address the geography issue I wrote about earlier in the week.  He asserts that the United States is in an armed conflict with al Qaeda.  But are there geographical constraints to this armed conflict?  Or can the U.S. target senior al Qaeda leaders no matter where they are (and as long as the operations adhere to the principles of distinction and proportionality)?

I recommend the Opinio Juris comments thread on the post, as well as Kenneth Anderson’s post at The Volokh Conspiracy, which address these, and other still unanswered questions.

One amusingly trenchant exchange occurred over the weekend between Kevin Jon Heller and Ilya Somin of Volokh Conspiracy.  It began here, when Somin argued that al Qaeda, “given the enormous scale of its atrocities,” qualifies as an entity with which the United States is at war.  Thus, he asserted, the United States can target members of al Qaeda.  The U.S. killing of Admiral Isoroku Yamamoto during World War II is widely considered to be legal, he noted, so killing bin Laden must be legal as well.  But, as Heller retorted, such a statement demonstrates that Somin lacks an understanding of the fundamentals of international humanitarian law (IHL):

It is, of course, legally impossible for a state to be in a “war” — i.e., in an international armed conflict — with a non-state actor like al Qaeda, as the Supreme Court recognized in Hamdan.  As reflected in Common Article 2 of the Geneva Conventions (and this is really IHL 101), international armed conflict can exist only between states.

This dispute offers the reader a gateway into a much more substantial discussion going on at Opinio Juris about the IHL angle on the bin Laden killing.  Kevin Jon Heller summed it up pretty nicely in his first post on the subject:

I have no doubt that killing UBL was legal. To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways.  The best rationale is that UBL was a member of an organized armed group (”original” al Qaeda) taking part in the armed conflict in Afghanistan.  In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality.  And nothing I’ve seen indicates that the attack on UBL’s compound violated either of those principles.

So there are two options for this falling under the IHL framework – either it was an extension of a non-international armed conflict in Afghanistan or it was a part of a non-international armed conflict in Pakistan.  Both options lead us to the ambiguities of IHL’s scope, particularly its geographic scope, as Michael Lewis wrote about here.  Deciphering a battlefield boundary is incredibly important.  Why?  I’ll let Mary Ellen O’Connell explain:

The definition of armed conflict is crucial because during an armed conflict, and only during an armed conflict, regular members  of a state’ s armed forces who respect the law of armed conflict (LOAC) may kill without warning. They may use lethal force without fear of prosecution for the deaths they cause… Outside armed conflict, law enforcement officials are authorized to use lethal force but only in personal self-defense or the defense of others facing an immediate threat to life or serious physical injury… It is only during the int ense fighting of an armed conflict that international law permits the taking of human life on a basis other than the immediate need to save life. In armed conflict, a privileged belligerent may use lethal force on the basis of “reasonable necessity”; outside armed conflict, the relevant standard is “absolute necessity. “

So we have an interest in limiting the geographical scope of armed conflicts, lest the entire world become a battlefield.  But Michael Lewis notes the other side of the argument.  If we limit the geographic scope too strictly, we risk creating a legal regime that gives terrorists an advantage.  A terrorist, for example, could participate in an attack, then slip outside the zone of armed conflict, using the legally delineated battlefield boundary as a shield from targeting.  As Lewis puts it, terrorists “would get to decide when, where and how the war is to be fought because they would be immune from targeting based purely on geography.”

But how does one balance the desire to not create a legal regime that advantages terrorism with the desire to not have non-international armed conflicts spill too much over into the rest of the world?  Perhaps the answer lies in RAND’s 2008 study of how terrorist groups end (this is a point Mary Ellen O’Connell has raised).  The study examined 648 terrorist groups that existed between 1968 and 2006 and concluded that, of the groups that ended, they were much more likely to end because they were integrated into political processes or dealt with by law enforcement.  According to RAND:

Calling the efforts a war on terrorism raises public expectations — both in the United States and elsewhere — that there is a battlefield solution. It also tends to legitimize the terrorists’ view that they are conducting a jihad (holy war) against the United States and elevates them to the status of holy warriors. Terrorists should be perceived as criminals, not holy warriors.

Perhaps this is the way out of the dilemma to which Lewis points.

It’s important to keep in mind that this debate is not about whether there will be a long-term U.S. presence in Iraq.  It is actually about whether that presence will consist of military personnel or private contractors under the umbrella of the State Department.  As The New York Times reported last year, the post-2011 U.S. plan is to keep up to 7000 security contractors in Iraq to “operate radars to warn of enemy rocket attacks, search for roadside bombs, fly reconnaissance drones and even staff quick reaction forces to aid civilians in distress.”

It is also interesting to remember how this issue emerged during the 2008 presidential campaign.  The Democrats perpetually hammered McCain for this exchange:

Q: President Bush has talked about our staying in Iraq for 50 years — (cut off by McCain)

McCAIN: Make it a hundred.

Q: Is that … (cut off)

McCAIN: We’ve been in South Korea … we’ve been in Japan for 60 years. We’ve been in South Korea 50 years or so. That would be fine with me. As long as Americans …

Q: [tries to say something]

McCAIN: As long as Americans are not being injured or harmed or wounded or killed. That’s fine with me, I hope that would be fine with you, if we maintain a presence in a very volatile part of the world where Al Queada is training and equipping and recruiting and motivating people every single day.

And yet, after Obama was elected, the leave-troops-in-Iraq-beyond-2011 option was always on the table.  The New York Times reported in December 2008:

General Odierno also said that he was planning for all American forces to be out of Iraq by 2011, as called for in the agreement with the Iraqi government, but he said the agreement could be renegotiated. “Three years is a long time,” General Odierno said.

The new military plan allows for the fact that negotiations could eventually call for American troops in Iraq after 2011, but it does not put a number on that force, a person familiar with its details said.

But this example of campaigning in poetry and governing in prose is not surprising.  What is surprising (to me) is Maliki’s reversal.  He said late last year of the SOFA, “This agreement is not subject to extension, not subject to alteration. It is sealed.”  Was that political posturing to garner support for a national unity government to end the parliamentary crisis that resulted from Iraq’s March 2010 elections?  After all, the crisis was resolved with Sadr’s support.  But as late as three weeks ago, apparently, Maliki told U.S. Chairman of the Joint Chiefs of Staff, Mike Mullen, that Iraq was ready to handle its own security.  The Chief of Staff of Iraq’s military, Babaker Zebari, has also gone back and forth on the issue. as Joel Wing writes here and here.  If I had to guess, I’d say that Iraq’s leaders are caught between what they perceive as their country’s strategic interest and public opinion, which seems to oppose a long-term U.S. military presence.  And seemingly, U.S. leaders are suffering from the same dilemma.

Once you embrace the bin Laden Exception, how does it stay confined to him? Isn’t it necessarily the case that you’re endorsing the right of the U.S. Government to treat any top-level Terrorists in similar fashion? Again, this isn’t an argument that the bin Laden killing was illegal; it very well may have been legal, depending on the facts. But if we just cheer for this without caring about those facts, isn’t it clear that we’re endorsing a dangerous unfettered power…

Second, Pakistan views the operation as a “violation of sovereignty,” to quote Pakistan’s Foreign Secretary, Salman Bashir.  Some lawmakers in Pakistan called for President Zardari and others to resign due to the “great violation of our sovereignty,” as former Foreign Minister, Shah Mahmood Qureshi, put it.

While these two points weigh against the wisdom of the killing, a third weighs in favor of it.  As Juan Cole noted over the weekend, some analysts think, in the wake of the bin Laden killing, that the Taliban may sever its ties with al Qaeda, making a negotiated settlement in Afghanistan more likely.  Additionally, as Cole also notes, there are reports that Taliban insurgents are fleeing the province of Qunduz.  So perhaps, despite the precedential issues and the Pakistan tension issues, there might just be tangible strategic gains that arise from the bin Laden killing.

After Hamas won the elections in January 2006, al Qaeda leaders reached out to Hamas, and Hamas repeatedly rejected their advice and entreaties.  In March 2006, al-Zawahiri urged Hamas to seek armed struggle rather than peace with Israel.  But, as the BBC reported:

Hamas political leader Khaled Meshaal said the movement had “its own vision” and did not need al-Qaeda’s advice.

The following month, Osama bin Laden, for the first time, “publicly allied himself with Hamas,” as Arutz Sheva reported.  But the article continues:

Following the release of Sunday’s tape, however, Hamas spokesman Sami Abu Zuhri rushed to distance the terror group from Bin Laden’s remarks. In a message to English media, he said, “Hamas is totally different from the ideology of Sheikh bin Laden,” adding that his cash-starved group is interested in having good relations with Western nations.

In December 2006, al-Zawahiri had stern words for Hamas, according to MSNBC:

He accused Hamas of making a number of concessions that would ultimately lead to “the recognition of Israel.”

He said these concessions began with Hamas’ signing “the truce” with Israel last year, then the group took part in the January elections “based on a secular constitution,” and recognized Abbas as the head of the Palestinian authority.

In 2007, Hamas played a “crucial” role (in the words of Gordon Brown) in freeing Alan Johnston, a BBC journalist kidnapped by Army of Islam, a group that one could much more convincingly tie to al Qaeda.  Furthermore:

A well-informed source in Hamas said that the movement’s action against the Army of Islam was not inspired by a desire to win international sympathy or prove the movement’s credentials. Hamas is simply opposed to Al-Qaeda’s ideas. The source, who spoke on condition of anonymity, said that some Al-Qaeda leaders regard the Muslim Brotherhood (MB) as an atheist organisation. Hamas, by contrast, sees itself as part of the MB. “Should we allow Al-Qaeda to have a free rein; it would end up attacking us,” he remarked.

And in 2009, Hamas fought gunmen from Jihadi Salafi, an al Qaeda-inspired group that aims to create an Islamic state in Gaza.  Tensions between Hamas and Jihadi Salafi persist, as this Fox News clip from last month demonstrates:

All of this explains why Haniyeh, in his condemnation of the bin Laden killing, was careful to distance himself from al Qaeda.  He said:

Despite the difference in opinions and agenda between us and them, we condemn the assassination of a Muslim and Arab warrior and we pray to God that his soul rests in peace…

Schanzer and others (see the FPA Israel blog on the subject) incorporate Haniyeh’s condemnation and the Hamas-al Qaeda  conflation notion into arguments against the Hamas-Fatah reconciliation process.  There are many reasons to condemn Hamas.  The Goldstone Report outlines many of them; it calls on all Palestinian armed groups to “renounc[e] attacks on Israeli civilians and civilian objects” (p. 551) and holds Hamas accountable for violations of international humanitarian law committed by Palestinian armed groups in Gaza (p. 151).  But assertions about a Hamas-al Qaeda alliance are incorrect.

So what arguments are available to those who wish to claim illegality?  Osama bin Laden was probably no longer a combatant, argues Thomas Darnstadt of Der Spiegel.  It is possible that Osama bin Laden was no longer giving orders, he asserts, and was thus not a legal target.  Furthermore, the operation happened outside the field of battle (that being in Afghanistan).  And certainly if one accepts the ICJ rulings that Michael Lewis referenced, and if one accepts that we should view ICJ rulings as authoritative (as Mary Ellen O’Connell said in my interview with her here), then one can build a case that the operation was illegal.

The other level of the debate is: who cares if it was illegal?  Even if it was illegal, this line of thinking goes, it was still the right thing to do.  Osaama would have been unlikely to receive a fair trial, as Mark Kersten of Justice in Conflict notes (Jeffrey Toobin wrote a similar article for CNN). But more importantly, seemingly, as The New York Times, for one, states, the killing “showed guts” and was “an extraordinary moment for Americans and all who have lost loved ones in horrifying, pointless acts of terrorism.”

But one danger of violating international law is that others are likely to seize upon the incident as precedential.  As I argued in a Foreign Policy in Focus article last year, the United States has experienced this phenomenon before.  Putin referenced the “illegal but legitimate” Kosovo operation to justify Russia’s actions in Georgia in 2008.  Bulgaria, after it shot down a passenger jet in 1955, killing six U.S. nationals, evaded ICJ jurisdiction by claiming that the incident was domestic in nature, exactly the jurisdiction-evasion technique the United States reserved for itself in the 1946 Connally amendment.  In the wake of the bin Laden killing, Knesset member Shaul Mofaz has already taken the opportunity to call for the assassination of Hamas leaders.

And the perspective getting the least amount of play is: who cares if it was legal?  Maybe we shouldn’t have done it regardless.  As one student interviewed by NPR said, “We’ve had nine years of war, a lot of violence on both sides, and a lot of hate that just seems to be perpetuating, and I still don’t know what that means.”  As Erik Ehn, playwright and anti-genocide activist, wrote:

A death contributes nothing to justice – it is a way of making less, of subtracting… Justice is asymmetrical – we would never be able to kill Bin Laden enough to compensate for the loss of life. This is key to recovery from genocide as well – there is no fit punishment. Yet to be sustainable as a people (as a social body with memory) we need to coexist…

And there’s been a quote circulating the internet apparently incorrectly attributed to Martin Luther King, but nonetheless it adequately expresses the death-is-not-justice viewpoint:

I mourn the loss of thousands of precious lives, but I will not rejoice in the death of one, not even an enemy. Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness: only light can do that. Hate cannot drive out hate: only love can do that.

In general, though, the response to the killing seems to confirm, as I wrote last month, the widespread acceptance of George Kennan’s assertion that the Golden Rule has no place in foreign policy.  Like Benjamin Franklin wrote of the Native Americans, we, as Americans, do not foresee peace with our enemies “till we have well drubbed them.”